Lynas v. Williams

• Decision Date: 08 February 1995
• Docket Number: A94A2816,Nos. A94A2815,s. A94A2815
• Citation: 216 Ga.App. 434,454 S.E.2d 570
• Parties: LYNAS v. WILLIAMS. WILLIAMS v. LYNAS.
• Court: Georgia Court of Appeals

Page 570

454 S.E.2d 570

216 Ga.App. 434

LYNAS v. WILLIAMS.

WILLIAMS v. LYNAS.

Nos. A94A2815, A94A2816.

Court of Appeals of Georgia.

Feb. 8, 1995.

Reconsideration Denied Feb. 28, 1995.

Certiorari Denied May 15, 1995.

Ashenden, Flynn & Gottlieb, Edward D. Flynn III, Atlanta, for appellant.

H. Darrell Greene & Associates, H. Darrell Greene, Paul Shimek III, Marietta, for appellee.

BIRDSONG, Presiding Judge.

Appellee/cross-appellant Hugh Williams brought suit against appellant/cross-appellee James Lynas d/b/a Executive Collision Services (Lynas) averring, inter alia, that appellant's conduct in repairing appellee's car violated the Fair Business Practices Act of 1975, specifically OCGA § 10-1-393(b)(7). Appellant/cross-appellee Lynas appeals from the orders of the trial court denying his motions for summary judgment and directed verdict, and denying in part his motion for j.n.o.v. or in the alternative for new trial. Cross-appellant/appellee Hugh Williams cross-appeals from the order of the state court granting in part cross-appellee's motion for j.n.o.v. with respect to exemplary damages and denying cross-appellant's motion for supersedeas bond. Held:

Case No. A94A2815

1. Appellant Lynas first enumerates that the trial court erred in denying his motion for summary judgment, on the grounds of lack of a genuine issue of material fact to at least one of the essential elements of appellee Williams' claim. This question is moot. Talmadge v. Talmadge, 241 Ga. 609(1), 247 S.E.2d 61; First Financial Ins. Co. v. Mathis, 214 Ga.App. 537, 448 S.E.2d 87; Hitchcock v. Tollison, 213 Ga.App. 477, 478(1), 444 S.E.2d 844; compare Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga.App. 154, 264 S.E.2d 662. Moreover, even assuming error had occurred as averred in appellant's first enumeration, the circumstances before us fall within the general rule that " '[w]here a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.' " First Financial Ins. Co., supra at 538, 448 S.E.2d 87, quoting Dunlap v. Dunlap, 234 Ga. 304, 306(3), 215 S.E.2d 674. Sufficiency of the evidence will be addressed in relation to appellant's second enumeration of error; see Division 3(b) below.

2. Appellant Lynas contends the trial court erred in not admitting certain photographs. This issue is not preserved for appeal as it is not reasonably contained within the scope of appellant's enumerations of error. Jones v. Sauls, 213 Ga.App. 55, 58(3)(c), 443 S.E.2d 693. Moreover, cursory examination of the transcript does not reveal that the trial court abused its discretion in failing to admit these photographs.

3. Appellant Lynas contends the trial court erred in denying his motions for directed verdict and motion j.n.o.v., as "there was no evidence presented at trial in support of all the required elements of appellee's cause of action."

(a) In support of this enumeration appellant asserts that appellee failed to give the statutorily required notice of OCGA § 10-1-399(b). Appellant's contention that the notice must be given by the administrator of the FBPA is without merit; notice may be given by the claimant or his attorney. Compare Sharpe v. Gen. Motors Corp., 198 Ga.App. 313(1), 401 S.E.2d 328 and Paces Ferry Dodge v. Thomas, 174 Ga.App. 642, 643(1), 331 S.E.2d 4. While the notice, pursuant to OCGA § 10-1-399, is not technically an element of a cause of action for a FBPA violation (see Zeeman v. Black, 156 Ga.App. 82, 87, 273 S.E.2d 910), it is a statutory prerequisite to the filing of a FBPA suit that adequate written notice be timely sent. OCGA § 10-1-399(b); see Paces Ferry Dodge, supra at 643(1), 331 S.E.2d 4. The notice requirement of OCGA § 10-1-399(b) is to be liberally construed, and the sufficiency of notice is a question for the court. Sharpe, supra at 313(1), 401 S.E.2d 328; Paces Ferry Dodge, supra at 643(1), 331 S.E.2d 4. The trial court found that "the letter addressed to Jim Lynas and executed by Hugh Williams on October 15, 1987, fulfills the statutory notice required" by OCGA § 10-1-399(b). Construing the letter liberally, as we are required to do, we find the trial court did not err in concluding that the letter provided sufficient notice, under the provisions of OCGA § 10-1-399(b), of a demand for relief based on a reasonably described FBPA violation. Compare Paces Ferry Dodge, supra.

(b) Appellant Lynas contends, inter alia, that the trial court erred, as enumerated, as appellant's conduct had or has no potential for harm to the general consuming public but occurred during an essentially private transaction. " 'One may bring a private suit under the FBPA only if he is individually injured by the breach of a duty owed to the consuming public in general. (OCGA § 10-1-399) does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction. In those circumstances, even though the plaintiff may be a "consumer" with regard to the transaction, if the deceptive or unfair act or practice had or has no potential for harm to the general consuming public, the allegedly wrongful act of the defendant was not made in the context of the consumer marketplace. Unless it can be said that the defendant's actions had or has potential harm for the consumer public the act or practice cannot be said to have "impact" on the consumer marketplace and any "act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA." State of Ga. v. Meredith Chevrolet, 145 Ga.App. 8, 12 [ (244 SE2d 15) (1978) ]. When a "consumer" suffers damage as the result of an unfair or deceptive act or practice which had or has potential impact solely upon him and which is not and could not be a source of damage to any other member of the consuming public, there is no public interest to be served by proceeding under the FBPA, and the aggrieved party is relegated to pursuit of relief under other statutory or common law principles.' Zeeman v. Black, [supra at 84-85, 273 S.E.2d 910]. 'The FBPA is no panacea for the congenital ills of the marketplace (and) does not instantly convert every alleged breach of contract into a violation of the (act).' (Citation and punctuation omitted.) DeLoach v. Foremost Ins. Co., 147 Ga.App. 124, 125 (248 SE2d 193)." Gross v. Ideal Pool Corp., 181 Ga.App. 483, 484-485(1), 352 S.E.2d 806. "This is a plain breach of contract case, and the trial court [erred in denying] a directed verdict on [appellee's] FBPA claim." Id. Appellee Williams admitted in his testimony that appellant (who owned and operated an automobile repair/restoration shop) had seen appellee's 1967 limited production Chevrolet Camaro automobile at appellee's house and stopped to inquire about purchasing the vehicle; appellee declined to sell but appellant kept stopping by appellee's house attempting to buy the car; appellant stopped by "often enough that we got to know each other a little bit"; appellant would tell appellee how good he was at restoring automobiles, and "so finally after a number of months I decided that I wanted to get the car restored"; and finally, appellee told appellant he was not interested in selling but was interested in getting restoration work done on the car when appellant called again to purchase the car. This series of events led to the oral agreement here at issue.

We find that the circumstances here establish, plainly and indisputably, that the agreement at issue was entered into as a result of an essentially private transaction; appellant's alleged acts and conduct did not in this instance arise in the context of the consumer marketplace. "Here, the alleged deception was not introduced into the stream of commerce. Nor was it reasonably intended to impact on any 'market' other than [appellee Williams]." Larson v. Tandy Corp., 187 Ga.App. 893, 896(4), 371 S.E.2d 663. While appellee may have a cause of action based on some other ground, there exists no viable cause of action based on a claim under the FBPA. The trial court erred as enumerated. Compare Medley v. Boomershine Pontiac-GMC Truck, 214 Ga.App. 795, 796(2), 449 S.E.2d 128; ...